Kamlesh Kumar Gupta vs 1st Addi. District and Sessions Judge and Others

R.B. Misra, J

The present petition under Article 226 of the Constitution of India seeks to challenge the order of the 1st Additional District and Sessions Judge, Shahjahanpur, dated 17th May, 1975, arising out of proceedings under the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter referred to as the Act).

It appears that the Nagar Palika, Tilhar, moved an application u/s 4 of the Act against the Petitioner for his eviction from the public premises, as detailed in the application, situate within the limits of Tilhar municipality, and for recovery of a sum of Rs. 2,440.00 p. as damages at the rate of Rs. 20/- per mensum. The damages were claimed for a total period of ten years two months.

The Petitioner filed an objection, a copy of which has been filed as Annexure ''C-V to the counter affidavit. In paragraph 3 of the additional pleas, it has been alleged that the Petitioner received no notice u/s 4 of the Act.

The Prescribed Authority, after examining the evidence adduced by the parties, came to the conclusion that the Petitioner was in unauthorised occupation of the public premises and, therefore, he was directed to vacate the premises and also to pay damages of Rs. 600/- by order dated 19th September, 1974. The Petitioner feeling aggrieved by the order of the Prescribed Authority, preferred an appeal, but the appeal was dismissed by the 1st Additional District Judge by the impugned order dated 17th February, 1975. The appellate authority also confirmed the finding recorded by the Prescribed Authority. As regards the notice u/s 4 of the Act, the learned Judge held that a notice in the shape of summons was sent to the Petitioner requiring him to show cause as to why he be not evicted from the public premises and that summons, in the opinion of the learned Judge, served the purpose of a notice u/s 4 of the Act. The Petitioner has now come to challenge the orders of the authorities below by filing the present petition.

Sri Prakash Gupta, appearing for the Petitioner, has contended that in the absence of a notice u/s 4 of the Act, the entire proceedings were vitiated and the authorities below have committed an error apparent on the face of the record in ordering eviction of the Petitioner for non-compliance of the mandatory requirements of Section 4 of the-Act. It was further contended that even before the passing of the order for damages, no notice had been served on the Petitioner, as required u/s 7 of the Act.

It would be appropriate at this stage to refer to the relevant provisions of Sections 4 and 7 of the Act. Section 4 insofar as it is material for the purposes of the case, reads:

(His Lordship then quoted Section 4(1)(2)(a)(b)(3), (4) and Section 7(1)(2) and (3) and proceeded on to observe) :

The prescribed mode for the notice u/s 4 has been provided in Form ''A'' and the notice for the proceedings u/s 7 has been provided in Form ''G''. It is now no more in dispute that the notice, as required u/s 4, was not issued. The argument even before the appellate authority, was that the summons, which was issued to the Petitioner, would serve the purpose of the notice u/s 4.

Sri Swami Dayal, appearing for the Respondent, on the other hand, contended that the fact, that the Petitioner filed an objection in which he made a para-wise reference of the application, itself indicates that the Petitioner must have examined the record and only then he would be in a position to reply parawise to the application made u/s 4 and if the Petitioner had an opportunity of examining the record, no prejudice could have been caused to him. He has produced his evidence whatever he thought proper and even if there was non-compliance of Section 4, the Court should not interfere with the order passed by the appellate authority.

Sii Prakash Gupta, however, contended that Section 4 was the mandatory requirement of law and no proceedings could be initiated against the Petitioner, either for his eviction or for recovery of damages unless the notice under Sections 4 and 7 as required, had been served on the Petitioner and as no notices were served on the Petitioner u/s 4 or u/s 7, therefore, the entire proceedings are vitiated on that account.

The well established principle is that if the law requires a thing to be done in a particular manner, that should be done in that manner or not at all. The statutory requirement of law is that the notice should be in the prescribed form, which contemplates the ground on which the Petitioner is sought to be evicted. ''Unauthorised occupation'' is a defined term. Section 2(g) defines ''unauthorised occupation'' in relation to a public premises, means the occupation by any person of the public premises without authority for such occupation, and includes the continuance in occupation by any person of the public premises after the authority whether by way of grant or any other mode of transfer under which or the capacity in which he was allowed to hold or occupy the premises has expired or has been determined for any reason whatsoever, and also includes continuance in occupation in the circumstances specified in Sub-section (1) of Section 7, and a person shall not, merely by reason of the fact that he has paid any amount as rent, be deemed to be in authorised occupation.

Section 2(g) of the Act includes various kinds of persons as unauthorised occupants within its fold. Section 4 of the Act requires the issue of a notice in the prescribed form, as provided in the rules giving specific ground on which the person is sought to be evicted. Section 4 and the rules prescribed a form for the issue of a notice giving a specific ground on which the Petitioner was sought to be evicted.

It is true that the Petitioner had filed an objection to the application u/s 4, but that would not satisfy the requirements of law. The Petitioner might have replied to the application u/s 4 parawise, but unless the Petitioner knows as to on what ground he is sought to be evicted, he could not effectively file an objection or effectively make a representation. The mere fact, that there has been flagrant violation of the mandatory requirement of law, itself causes prejudice to the Petitioner and the fact, that he had filed an objection, will not cure the defect. Even the required notice u/s 7 before passing an order for damages has not been given to the Petitioner and in that respect also there is flagrant violation of Sub-section (3) of Section 7.

Sri Swami Dayal, in support of his contention, that no prejudice has been caused to the Petitioner and, therefore, the Court should not interfere with the impugned order, referred to Saeed Ahmad v. Murli Dhar. In that case, the Election Tribunal allowed the amendment of the election petition on the very same day on which the amendment application was moved without affording any opportunity to the Petitioner to object to the proposed amendment. Proceedings in connection with the hearing of the election petition are quasi judicial proceedings and no order on the application for amendment of the election petition should have been passed without affording an opportunity to the Petitioner to have his say in the matter. But, before confirming the order dated 1st January, 1966, the Tribunal asked the Petitioner to file his objection and, therefore, if the Petitioner was afforded an opportunity and heard before the confirmation of the order, there was substantial compliance. That case has hardly got any relevance to the facts of the present case.

In the case in hand, there is a mandatory requirement that no proceedings for eviction can be initiated unless notice, as contemplated under the Act, has been served on the person occupying the premises. Without the service of notice, the proceedings could not have been initiated against the Petitioner and, therefore, that case has got absolutely no relevance to the facts of the present case. I find considerable force in the contention raised on behalf of the Petitioner.

For the reasons given above, the writ petition must succeed. It is, accordingly, allowed and the order of the 1st Additional District, Judge, Shahjahanpur, dated 17th February, 1975, and the order of the Prescribed Authority dated 19th September, 1974, are quashed. This order, however, will not stand in the way of the Respondent for initiating proceedings according to law if it so choses. However, in the circumstances of the case, there is no order as to costs.